Chauvin Pre-trial Day 4: Defense Burns Two More Peremptory Strikes

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

As a reminder, I am “LIVE Parlering” the trial in real-time over at my Parler account, which you can find using my Parler handle:  @LawofSelfDefense.

Defense Compelled to Burn Two More Peremptory Challenges

The afternoon saw voir dire, or jury selection, move through three additional prospective jurors, #39, #40, and #41.

Unfortunately, it quickly became apparent that each of these three jurors had deep-seated and emotional biases against Chauvin.  The first two attempted to pretend this was not the case but were exposed by their responses to the juror questionnaire they (and all prospective jurors) completed last year, and in the case of #40 also by his social media posts (which were searched by the defense team).

Neither of these two could possibly have been allowed on the jury, but they each professed to be fair and impartial, and so they had to be removed by the defense using peremptory strikes rather than for cause.  As a result, the defense is now down to 9 remaining peremptory strikes.

Prospective juror #41 had as deep-seated a bias against Chauvin as the others, but I’ll give her full credit for immediately and explicitly citing that bias the moment she came into court.  So, she was honest, and praise for that.

Less credit to Prosecutor Schleiter who actually tried to salvage this juror by convincing her that despite her protestations she could surely be fair and impartial.  Fortunately, he was unsuccessful.

Because of her candor in announcing she could not be fair and impartial, #41 was removed for cause, and did not require the defense to burn another peremptory challenge.

Prospective Juror #39: Stricken by the Defense

The first portion of the defense voir dire of prospective juror #39, a male, was rather uneventful, except that the audio demeanor of #39 struck me as that of someone who was rather stoned.

Things came off the rails rather quickly, however, when defense counsel Nelson began referring to the juror questionnaire completed by #39 late last year, particularly in reference to questions around the bystander video of Floyd’s death.

Based on this video #39 reported having formed a very negative opinion of Chauvin:

In that questionnaire, #39 described his perception of the video of Floyd’s death as:

It was an outrageous incident. Minneapolis Police Department needs to be completely re-thought.  Officers in video were behaving more like an occupying military force than as police officers.

Prospect #39 described Chauvin’s conduct towards Floyd as showing a “lack of respect for life.”

As much as defense counsel Nelson was troubled by #39s comparing Chauvin’s conduct to acts of war, it was equally troubling that #39 seemed to expect the defense to prove Chauvin’s innocence rather than acknowledging that Chauvin was presumed to be innocent until proven guilty beyond a reasonable doubt by the state:

When pressed by the defense, #39 asserted that he could put his opinions aside, but these assertions were apparently rather lacking in credibility:

The questionnaire also revealed that #39s wife had participated in Floyd demonstrations, and had donated money to police reform policies.

Although #39 reported that he did not participate in these activities himself, this was only because he was working full-time. Were he not working he likely would have participated, he said.

When asked on the questionnaire if he felt that the discrimination against blacks and minorities was exaggerated by the media, #39 strongly disagreed with that statement, indicating that he believed discrimination was as bad as characterized by the media.

When asked on the questionnaire to respond to these statement, “police treat whites and blacks equally,” #39 strongly disagreed with that statement, as well.

When asked on the questionnaire about defunding the police, #39 strongly agreed with that policy.

When asked if he trusts the police, #39 replied that he did—but only because he knew there were checks on the police, and he trusted the checks. Which sounds a lot like he trusts the check, and does not trust the police.

Prospective juror #39 also thought “blue lives matter” was rather silly, because after all, the police have guns, what do they need to be worried about?

It was also notable that #39 took an almost missionary zeal in serving on this jury:

Again, #39 adopted the position that he could imagine acquitting Chauvin, if the defense proved him not guilty, the opposite of the presumption of innocence to which all defendants are entitled:

Further, when pressed on whether he could be fair and impartial, #39 asserted that he could—but that doing so would be painful:

Ultimately, the defense was compelled to use a precious peremptory challenge to strike #39 from the jury pool.

Interestingly, after the defense exercised its peremptory challenge, the state raised a Batson challenge, alleging that the strike was based on race or ethnicity.   Although one wouldn’t know it from the sound of #39’s voice, which came across as whiter than Wonder Bread, apparently #39 self-identifies as Hispanic.

Judge Cahill rejected this challenge, however, noting that the defense had presented race-neutral grounds for the strike.

Judge Cahill also noted that at this point there had been six jurors chosen, and of considerable racial diversity—they self-identified as three white, one Hispanic, one black, and one multiracial—suggesting there was no racial motivation behind the defense strikes.

Here’s the voir dire of prospective juror #39:

Prospective Juror #40: Stricken by the Defense

Prospective juror #40, a male, described himself as a music teacher, albeit one unable to play a musical instrument.

His voir dire also proceeded uneventfully until the defense started digging into his questionnaire, and then further into his social media posts.  This prospect also insisted early on and throughout that he could be a fair and impartial juror in this case.

In his questionnaire, #40 described his opinion of Chauvin as very negative.  The basis for this opinion?  #40 wrote:

“Seeing the look on Chauvin’s face on the video, and seeing him and other officers ignoring bystander cries to stop once Floyd was on the ground and subdued.”

He described the continued restraint of Floyd by the officers as “over the top” and “unnecessary.”

When the questionnaire asked for his opinion on Floyd, #40 responded that he’d heard that Floyd was being arrested for having passed a bad bill, “but he still shouldn’t have been treated like that.”

Prospective juror #40 then went on in his questionnaire response to write:

“Floyd had a record, but didn’t deserve to die like this by a cop who has duty to protect, who ignored his pleas, Chauvin should have stopped, and other officers should have intervened.”

When asked in the questionnaire about the property destruction and looting that took place in Minneapolis during the Floyd-related protests, #40 blamed this destruction on the boogaloo boys, rather than on Black Lives Matter, and expressed a strong interest in systematic reform of the police:

After a short break, court resumed and Nelson began asking #40 about his social media posts, which the defense had researched.

The prospective juror tried to downplay his social media activity, but this was really the nail in the coffin that ought to have been the basis for removing #40 for cause, but which compelled the defense to use a peremptory challenge.

When asked about this, #40 said he couldn’t recall posting to social media about the Floyd death. It turned out that he’d posted this:

“I went to the site of the George Floyd memorial at 38th and Chicago where he was murdered. There was a mix of all sorts of people, there were people providing food and supplies for those in need, people crying, people sharing, hugging, laughing with each other. Holy ground.  There was a time for prayer that lasted 9 minutes. Most knelt for that. Nine minutes is a long time. There is a groundswell for change. It was peaceful and beautiful and moving.”

Fair and impartial, indeed.

Again, prospective juror #40 insisted that he could serve as a fair and impartial juror, which apparently is all that Judge Cahill needs to hear in order to compel the defense to burn another peremptory strike—which, of course, they did.

Here is the voir dire of prospective juror #40:

Juror #41: I cannot be fair & impartial on this case.

The last juror of the day was #41, a female.

She was no less biased against Chauvin than were #39 and #40, but at least she was honest about it. Because of her candor, she was in court only about 8 minutes before being dismissed for cause, although almost half that time involved Prosecutor Schleiter trying to convince her that she was a reasonable juror for this trial.

Almost the moment she enters the courtroom, #41 tells Judge Cahill explicitly that she does not believe she can bring impartiality to this case:

Cahill informs her she could still be a juror, despite her strongly held opinion, if she can simply set that opinion aside for purposes of the trial.  To her credit, she stands her ground in her belief that this would be extremely hard for her to do.

When Judge Cahill explicitly asks her if she can be fair and impartial on this case, she answers directly in the negative:  No.

You’d think that would be all she wrote for #41, but no, Prosecutor Schleiter would love her on the jury, so he takes an opportunity to try to convince her to stay.  She’s not convinced.

When he directly asks here if she believes she can give the defendant a fair trial, she says she wishes she could, but she can’t. Again, full points to #41 for honesty.

And with that, even Schleiter gave up, and Judge Cahill dismissed her for cause.

And here’s the brief voir dire of #41:


And that wraps up court for today, with proceedings to continue tomorrow morning at 9:00am CT.

We’ll continue to cover the case live on Parler tomorrow.

Until next time, stay safe!


Attorney Andrew F. Branca

Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]



8 thoughts on “Chauvin Pre-trial Day 4: Defense Burns Two More Peremptory Strikes”

  1. I am struct by not eliminating prospective juror #39 (and others) “for cause” in response to their answers!
    Am I missing something about that process?

  2. Having an equal number of peremptory strikes is not going to yield equal outcomes here because the area is left leaning and the judge seems to have virtually no standards.

    Do you think there would be grounds for appeal if jurors like this begin getting in after the defense runs out of challenges?

  3. guilty as charged

    In a fair trial, the prosecutor should only be able to strike by cause, and only the defense gets to strike by impromptu, with a more than reasonable number of impromptu strikes. A trial is supposed to be slanted in favor of the accused. The pool seems heavily anti police. Obligating the defense to burn its limited amount to impromptu strikes by a judge willing to seat anyone who claims they are impartial is not a fair trial. The prosecutor has to prove guilt beyond a reasonable doubt by evidence and testimony, not by a biased jury selection.

  4. Ironically, I suspect the prospective jurors who were honest about their bias would be better jurors than the obviously biased ones that claimed they could be impartial. At least the former have some honesty and integrity going for them. I also am astonished that such obvious examples of bias can be ignored by the judge. Is this sort of thing ever grounds for a successful appeal?

    1. Attorney Andrew Branca

      There’s a sense of defense counsel trying to “bake into the cake” a grounds for appeal when he keeps asking jurors if they are in fear for their safety if they are empaneled.
      Unfortunately, there are additional steps that could be taken along those lines that do not appear to be pursued.

      1. From what I have seen in my study of appeals in justifiable or excusable use of force cases, your trial attorney pretty well determines how successful an appeal will be in your case. If he doesn’t lay the proper foundation for an appeal at every opportunity then you are screwed. He has to dot all of his i’s and cross all of his t’s, object on constitutional grounds, object, object, object, make motion after motion, and take exception after exception. In some cases he actually has to lay the foundation for appeal a second time right before the case is submitted to the jury or he is deemed to have waived his former objections.

        We had a self defense case in 1902 in Missouri where the defendent was a former prosecutor and a practicing criminal lawyer. That old boy started laying the foundation for his defense before he ever pulled his revolver from his pocket. A lot of good case law in that unanimous en banc decision. Constitutional right to stand your ground and use deadly defensive force on a public street, a constitutional right to use a deadly weapon upon an unarmed aggressor when circumstances make it necessary, all constitutional rights are equal, and your constitutional right to be where you are lawfully present and to use a deadly weapon in self defense at that location does not yield to another man’s constitutional right to life.

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